Executive order outrage, part one

I know we tire of the hypocrisy, but I really think this is remarkable. We spent the eight years through January 19, 2009, listening to Democrats complain that President Bush had purportedly caused a constitutional crisis by issuing signing statements when he signed bills into law. Democrats and Arlen Specter (now a Democrat) complained that these unenforceable, non-binding expressions of the executive’s interpretation of the laws Bush was signing were a usurpation Congress’s power to enact legislation.

But now Democrats are going to abide not a mere signing statement but an executive order that purports to have the effect of legislation — in fact, has the effect of nullifying legislation that Congress is simultaneously enacting?

The Susan B. Anthony List observation that EOs can be rescinded at the president’s whim is of course true. This particuar EO is also a nullity — presidents cannot enact laws, the Supreme Court has said they cannot impound funds that Congress allocates, and (as a friend points out) the line-item veto has been held unconstitutional, so they can’t use executive orders to strike provisions in a bill. So this anti-abortion EO is blatant chicanery: if the pro-lifers purport to be satisfied by it, they are participating in a transparent fraud and selling out the pro-life cause.

But even if all that weren’t true, how do we go from congressional Democrats claiming that signing statements were a shredding of the Constitution to congressional Democrats acquiescing in a claim that the president can enact or cancel out statutory law by diktat?

Upon first hearing there was talk of an executive order yesterday, I wondered how the administration’s lawyers thought such an order could go beyond the letter of the law in restricting abortion funding. This was a question the Bush administration examined quite extensively on several occasions, and the lawyers involved always agreed that the legal precedents from the time between the Roe decision and passage of the Hyde amendment, as well as some after the Hyde amendment, are extremely clear in stating that federal funds cannot be denied to the provision of abortion except by explicit legislative prohibition. That’s why the Hyde amendment was necessary. But the Hyde amendment wouldn’t apply to this bill, since it applies only to the annual HHS appropriations bill. Hence Stupak’s concern. So what could the White House possibly give Stupak that would not be thrown out by any federal judge in a second?

Looking at the executive order (which you can read here), the answer is clearly nothing. The executive order quite literally does nothing that the Senate bill does not already do, and it is careful to say as much.